Madras High Court
V.Gnanavel vs The Secretary To Government on 6 June, 2018
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.06.2018 CORAM: THE HONOURABLE MR. JUSTICE T.RAJA W.P.Nos.22741, 6027, 13585, 13927/2015, 2304, 5833, 40003, 40736 and 41637/2016, 30867, 31008, 31526 to 31532, 32262 to 32271, 32529 to 32531, 32642, 32624 to 32638, 32821 to 32823, 32911 to 32916, 32917, 33088 to 33094, 33122, 33489 to 33491, 34245, 34253 to 34257, 34324 to 34327/2017 and 1150, 1151, 3305 to 3307, 3918 to 3920, 5060 to 5065, 5338 to 5341, 6325/2018 and connected Miscellaneous Petitions W.P.No.22741 of 2015 : 1. V.Gnanavel 2. K.Kirubagar 3. I.Richard 4. S.Sivakumar 5. K.Sekaran 6. S.Sivasankaran 7. M.Chinnusamy 8. T.Rajagopal 9. S.Kannan 10.S.Krishnakumar ... Petitioners Vs 1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, 2.The Commissioner, Erode Corporation, Erode. 3.The Director of Local Fund Audit, Kuralagam, Chennai-108. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents to allot GPF Account Number for grant of pension to the petitioners under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) by counting 50% of the services rendered by them prior to their respective date of regularisation. For Petitioners : Mr.Ravi Shanmugam for M/s.R.Prem Narayan For Respondents : Mr.Vijay Narayan, Advocate General assisted by Mr.V.Jayaprakash Narayanan, Special Government Pleader for R1 and R3 Mr.M.Rajamathivanan for R2 C O M M O N O R D E R
The Writ Petitions in W.P.No.22741/2015 etc. batch, having 107 Writ Petitions have been filed seeking a common relief for issuance of a Writ of Mandamus, directing the respondents to allot GPF Account Number for grant of pension to the petitioners under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) by counting 50% of the services rendered by them prior to their respective date of regularisation.
2. Mr.Ravi Shamugam, learned Counsel appearing for the petitioners in W.P.Nos.22741/2015 and 3305 to 3307/2018 submitted that the petitioners in that writ petitions were initially appointed in the Erode Municipality on daily wages on full time basis. After some time, Erode Municipality was upgraded into Erode Corporation. The Government also issued G.O.Ms.No.21, Municipal Administration and Water Supply Department dated 23.2.2006 regularising the services of the consolidated pay employees and NMRs on daily wages w.e.f. the date of issue of that order. Based on the same, the Corporation issued Proceedings in Na.Ka.No.5737/06/E1, dated 22.5.2006, bringing the petitioners therein who were working on daily wage basis to temporary basis and they were also brought into the regular time scale of pay w.e.f. 22.5.2006. Later on, the petitioners made several representations to the respondents to allot them General Provident Fund Numbers and also to count 50% of their services rendered on daily wages basis or on a consolidated pay as qualifying service for calculating pension. But their services, which were rendered after 1.4.2003 alone, was regularised and they have not brought under the Old Pension Scheme. Further, the petitioners in these Writ Petitions are all the employees of the Erode Corporation, they are all governed by the Tamil Nadu Pension Rules, 1978. While so, as per Rule 11(2) of the Tamil Nadu Pension Rules, 1978, 50% of the service rendered on daily wage basis or on consolidated pay has to be counted for qualifying service for pension. Therefore, according to the learned Counsel for the petitioners, they are all entitled for pension under Old Pension Scheme by counting 50% of the services rendered by them on daily wage basis or on consolidated pay.
3. Mr.Ravi Shanmugam, learned Counsel for Mr.R.Prem Narayanan, learned Counsel for the petitioners in W.P.Nos.31526 to 31532/2017 submitted that the petitioners therein are now working as Field Assistants in Thiruchengode Municipality and they were initially appointed as NMR on daily wages on full time basis. While so, by virtue of G.O.Ms.No.21, Municipal Administration and Water Supply Department dated 23.2.2006, their services were regularised by the concerned Commissioner thereby brining them into regular time scale of pay. Thereafter, they were promoted as Field Assistants in the 4th respondent Municipality therein. When they made applications to allot them GPF Number for grant of pension under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) by counting 50% of the services rendered by them prior to their respective date of regularisation, they are all brought under CPF scheme i.e. New Pension Scheme simply for the reason that their services have been regularised only after the cut off date i.e. on 01.04.2003 which is against Rule 11 of the Tamil Nadu Pension Rules.
4. Mrs.Dakshayani Reddy, learned Counsel appearing for 16 petitioners in W.P.No.6325 of 2018 submitted that the petitioners therein were all initially appointed on Daily Wage Basis in Coonoor Municipality. While so, taking into account the fact that they were all working on daily wage basis for a long time, the 2nd respondent therein by Proceedings dated 03.05.2006 and 19.05.2006 regularised their services in which one R.Chandran and N.Kannammal already retired from service. The learned Counsel further submitted that now the Government has changed the pension policy and introduced a New Pension Scheme from 01.04.2003 called CPS. When Rule 11(2) of the Pension Rules is very clear that a person, who has rendered employment on daily wage basis or on consolidated pay is entitled to count 50% of the service rendered prior to the regularisation, the Government cannot implement the said Rule by fixing a cut off date, namely, as 1.4.2003. The learned Counsel further submitted that in any event, this issue has already been considered by this Court in P.Chinnaiyan's case. Hence, following the same, the present petitions have to be allowed.
5. Since the petitioners in all these writ petitioners were initially appointed on various departments on daily wage basis or on consolidated pay prior to 01.04.2003, it is claimed that they cannot be denied pension under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) and they are entitled for pension by counting 50% of the services rendered by them prior to their respective date of regularisation as qualifying service. But the respondents have rejected their case mainly on the ground that their services have been regularised after 1.4.2003. The said contention is not correct., because, the cut off date as fixed by the Government as on 1.4.2003 was already declared as illegal and arbitrary by this Court in the case of P.Chinnaiyan vs. State of Tamil Nadu rep. by its Secretary to Government, Forest and Environment (FR-2) Department, Chennai-9 and others reported in (2014) 6 MLJ 316. Therefore, according to the learned Counsel appearing for the respective petitioners, by virtue of the above judgment, the respondents cannot deny the claim of the petitioners to allot GPF Account Number for grant of pension under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) by counting 50% of the services rendered by them prior to their respective date of regularisation.
6. The learned Counsels appearing on behalf of the respective other Writ Petitioners adopting the arguments advanced by the learned Counsels for the petitioners cited above requested this Court to allow their Writ Petitions by issuing a direction to the respondents to allot GPF Account Number for grant of pension to the petitioners under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) by counting 50% of the services rendered by them prior to their respective date of regularisation.
7. Counter Affidavits have been filed in some of the Writ Petitions by the respondents denying the claim of the writ petitioners.
8. Mr.Vijay Narayan, learned Advocate General assisted by Mr.V.Jayaprakash Narayanan, Special Government Pleader appearing for the respondent State in all these Writ Petitions submitted that all the Writ Petitions are not maintainable either on law or on facts and they are all liable to be dismissed in limine since all the petitioners knew very well that they will not be brought under Old Pension Scheme because as per the Tamil Nadu Pension Rules, the employees whose services have been regularised after the cut off date i.e. 1.4.2003 will be treated as a new employment and their names will be enrolled only under the Contributory Pension Scheme (New Pension Scheme) by virtue of Rule 11(4) of the Tamil Nadu Pension Rules, 1978. Hence the claim of the petitioners cannot be considered. More over, all the petitioners do not have any legal right to seek Old Pension Scheme. Hence, the question of issuing Mandamus to allot GPF Account Number for grant of pension under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme) by counting 50% of the services rendered by them prior to their respective date of regularisation is against the said rule. The learned Advocate General further submitted that if the prayer of the petitioners is allowed, that will have huge impact on the State Exchequer since several hundreds of similarly placed persons will claim the said benefit. This will in turn seriously prejudice the administration and functioning of the Local Bodies which were committed to render service to the people. The learned Advocate General further referring to P.Chinnaiyan's case heavily contended that the said case cannot be applied to the petitioners herein.
9. Explaining further, why the judgment in P.Chinnaiyan's case cannot be applied, the learned Advocate General submitted that when the cut off date of absorption as 01.04.2003 has been prescribed in Rule 11(4) of the Tamil Nadu Pension Rules, 1978, making it clear that the services rendered in non-provincialised service, consolidated pay, honorarium or daily wage basis shall be followed by absorption in regular service before 1st April 2003 without a break, without striking down the said cut off date i.e. 1.4.2003, the said judgment held that the cut off date of absorption as 1.4.2003 prescribed in Rule 11(4) shall be ignored. Therefore, the judgment in P.Chinnaiyan's case cannot be applied in the present cases, since the cut off date has not been struck off.
10. Let us see the reasons given in P.Chinnaiyan's case for allowing the said Writ Petition. The said case was filed against the denial of the respondents to grant pensionary benefits to the petitioner therein by taking into account the cut off date as 1.4.2003 for absorption and refusing to count half of the services rendered before absorption. In this regard, it is useful to extract Rules 11(2) and 11(4) of the Tamil Nadu Pension Rules, 1978 hereunder:
''Rule 11(2) and 11(4) of the Tamil Nadu Pension Rules:
11. Commencement of qualifying service-
(2) Half of the service paid from contingencies shall be allowed to count towards qualifying service for pension along with regular service subject to the following conditions:
(i) Service paid from contingencies shall be in a job involving whole time employment and not part-time for a portion of the day.
(ii) Service paid from contingencies shall be in a type of work or job for which regular posts could have been sanctioned, for example Chowkidar.
(iii) Service shall be for which the payment is made out on monthly or daily rates computed and paid on a monthly basis and which, though not analogous to the regular scale of pay, shall bear some relation in the matter of pay to those being paid for similar jobs being performed by staff in regular establishments.
(iv) Service paid from contingencies shall be continuous and followed by absorption in regular employment without a break.
(v) Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies shall be limited to the period after the 1st January 1961 for which authentic records of service may be available.
(vi) Pension or revised pension admissible as the case shall be paid from the 23rd June, 1988.'
11. Commencement of qualifying service-
(4) Half of the service rendered under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January, 1961 in respect of Government Employees absorbed in regular service before 1st April 2003 shall be counted for retirement benefits along with regular service, subject to the following conditions, namely:-
(i) Service rendered in non-Provincialised service, consolidated pay, honorarium or daily wages basis shall be in a job involving whole time employment;
(ii) Service rendered shall be on consolidated pay, honorarium or daily wages basis paid on monthly basis and subsequently absorbed in regular service under the State Government;
(iii) Service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis shall be followed by absorption in regular service before 1st April 2003 without a break.
Provided that this sub-rule is applicable to all employees who rendered service under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January 1961 and absorbed in regular service before 1st April 2003.
Provided further that wherever there was break in service before their absorption in regular service before 1st April 2003, the same shall be specifically condoned by the orders of the Head of Departments, in which the employees were regularly absorbed and such period of break, shall not count for the purpose of pensionary benefits.''
11. A reading of Rule 11(2) shows that all the employees, who are in non-provincialized service, on consolidated pay/honorarium/daily wages basis, are paid only from contingencies and the said Rule 11(2) makes it very clear that an employee is entitled to count half of the service rendered by him for the purpose of pension along with the regularised service and the service paid from contingencies shall be continuous and followed by absorption in regular employment without any break. While so, a reading of Rule 11(4) says that half of the service rendered under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January, 1961 in respect of Government Employees absorbed in regular service before 1st April 2003 shall be counted for retirement benefits along with regular service subject to three conditions, namely, 1) the service rendered on daily wages basis shall be in a job involving whole time employment, 2) Service rendered on consolidated pay, honorarium or daily wages paid on monthly basis and subsequently absorbed in regular service and 3) Such service shall be followed by absorption in regular service before 1st April, 2003 without a break.
12. This rule is applicable to all the employees who rendered service under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January, 1961 and absorbed in regular service before 1st April 2003. The service of any employee is regularised after 01.04.2003, as per Rule 11(4) of the Tamil Nadu Pension Rules, 1978, such employee is not entitled to get the benefit of counting half of the service rendered in daily wage basis along with regular service. The decision in P.Chinnaiyan's case says that the crucial date i.e. on 01.04.2003 has been chosen since a New Pension Scheme was introduced for those employees who entered into Government Service after 01.04.2003. Hence the Tamil Nadu Pension Rules, 1978 are not applicable to the persons who were recruited after 01.04.2003. Fixing the crucial date as 01.04.2003 makes a difference between Rule 11(2) and Rule 11(4) of the Tamil Nadu Pension Rules because one should have been absorbed in regular service before 01.04.2003 for the benefits of Rules 11(2) and Rule 11(4) of the Tamil Nadu Pension Rules, 1978.
13. After comparing the hardships faced by the employees who entered into service after 01.04.2003 and those who were appointed prior to 01.04.2003, but, given the benefit of regularisation after 01.04.2003, the Government came to the conclusion that the persons who are freshly recruited after 01.04.2003 into the Government Service are governed by the New Pension Scheme and the persons who are absorbed after 01.04.2003 are not extended the benefit of New Pension Scheme and held that the action of the department in denying to count the half of the long service rendered by the employees before their absorption into regular service who are not fresh recruiters, but absorbed into regular service after 01.04.2003, as per Rule 11(4) of the Tamil Nadu Pension Rules has no rationale basis. Hence, the State cannot deny the benefit of the Tamil Nadu Pension Rules based on the date of absorption, particularly, for the employees like the petitioners herein, who had rendered more than 2 or 3 decades of service before absorption.
14. I also fully agree with the ratio laid down by this Court in P.Chinnaiyan's case and being bound by the same, this Court finds no difficulty to follow the same. Further, in appeal, the decisions of the Single Judge in similar circumstances have been upheld by the two Division Benches of Madurai Bench of this Court in the Writ Appeals in W.A.(MD) No.760/2013 dated 09.09.2015 (The Director, Local Fund Audit, Chennai-106 and 2 others vs. A.R.D.Nayagam) and in W.A.(MD) No.1026/2015 dated 30.09.2015 (The State of Tamil Nadu rep. By its Secretary, Department of Municipal and Water Supply Department, Fort St. George, Chennai-9 and 5 others vs. R.Kesavan). Further, when an identical prayer was made to count half of the service rendered by the petitioner therein as Plot Watcher on daily wage basis along with regular service rendered by him in W.P. (MD) No.15903 of 2012 (M.Nagasamy vs. The Government of Tamil Nadu rep. by Secretary to the Government, Forest and Environment Department, Fort St. George, Chennai-9 and 3 others) by order dated 28.06.2016, after referring to the cut off date of 1.4.2003 fixed in the proviso to Rule 11(4), this Court has categorically held that the benefits given under Rule 11(2) of the Tamil Nadu Pension Rules, cannot be deprived of and take away by Rule 11(4) of the Tamil Nadu Pension Rules, 1978.
15. This has also been again followed by another Division Bench in W.A.No.(MD) No.51/2018 and etc. batch dated 27.3.2018 by which all the Writ Appeals and Writ Petitions are allowed and the respondents therein are directed to verify the service particulars of all the writ petitioners and count 50% of the services rendered by them on temporary basis and consequently, refix their pension within a period of four months from the date of receipt of a copy of that judgment/order.
16. While considering the similar and identical issue in W.P.Nos.2205 to 2209/2018 seeking Mandamus, directing the respondents to allot GPF Account Number for grant of pension to the petitioners under the Tamil Nadu Pension Rules, 1978 (Old Pension Scheme) by counting 50% of the services rendered by the petitioners in the post of Part Time Librarian, Double Part Time Librarian, Village Librarian from 02.01.1991 to 10.12.2006 along with their regular service in the post of Grade III Librarian from 11.12.2006, following the orders passed by this Court in W.P.Nos.272 of 2008 and 14416 of 2007 and 23.2.2011 and 9.4.2011 respectively to the effect that 50% of the past service in the post of Vocational Instructor along with the regular service has to be calculated for the purpose of pensionary benefits, directed the respondents therein to count 50% of the part-time service rendered by the petitioners along with the regular service for the purpose of pensionary benefits and allowed the said Writ Petitions by order dated 12.2.2018. Therefore, I have no impediment to allow these Writ Petitions.
17. A Division Bench of this Court in Union of India rep. by the Secretary, Atomic Energy Commission, Ministry of Atomic Energy, Trombay, Anushakthi Bhavan, C.S.M.Marg, Mumbai-1 and another reported in 2014(2) CTC 777 after referring to Rule 14 of CCS (Pension) Rules, 1972, has also held that the persons appointed as contingent staff either on temporary basis or on daily wage basis, who served not as a part timer and received salary every month are entitled to count 50% of their service for pension on their regularisation/absorption in regular establishment. It is pertinent to extract the relevant portion hereunder :
''...Thus, it is clear that persons appointed as contingent staff either on temporary basis or on daily wage basis, who served not as a part timer and received salary every month are entitled to count 50% of their service for pension on their regularisation/absorption in regular establishment. The New Pension Scheme, which is called Contribution Pension Scheme, came into force from 1.1.2004 and the same is applicable to all new entrants of Central Government Service as per the Scheme, and the respondents 1 to 16 cannot be treated as new entrants in the Central Government Service/IGCAR.
17. The word ''new entrant'' has got a definite meaning, ''a person, who enters recently''. A person already in service either as contingent staff or temporary staff continuously and absorbed in permanent establishment on or after 1.1.2004, cannot be termed as ''new entrant'' into service. The New Pension Scheme can be applied only to persons appointed for the first time as casual or temporary or permanent employee on or after 1.1.2004.
18. Similar issue was considered by one of us (N.P.V.,J.) in W.P.Nos.26933 & 26934 of 2007, Order dated 23.4.2008....'' Mere perusal of the above judgment clearly tells me that the issue of counting 50% of the temporary services along with the regular services has already been decided by this Court in respect of various departments, like, Education Department, Forest Department and various Municipalities holding that a person already in service either as contingent staff or temporary staff continuously and absorbed in permanent establishment on or after 1.1.2004, cannot be termed as ''new entrant'' into service and that the New Pension Scheme can be applied only to persons appointed for the first time as casual or temporary or permanent employee on or after 1.1.2004. Since Article 14 and 16 of the Constitution of India cannot be violated, the respondent State has to accept and respect the decisions of the learned Single Judge and also the Division Bench mentioned above without wasting the valuable time and money of the department by filing intra court appeals.
18. In this context, it is relevant to extract paragraph 20 of the Judgment of the Apex Court in Maharaj Krishnan Bhatt and another vs. State of Jammu and Kashmir and others reported in (2008) 9 Supreme Court Cases 24 hereunder:
''20. In our considered opinion, in the light of the facts and circumstances, the Government ought to have accepted and respected the decision of the learned Single Judge without filing intra-court appeal. No distinguishing feature has been brought to the notice of the Division Bench, nor the Division Bench set aside the judgment and order passed by the learned Single Judge holding or observing that though Abdul Rashid Rather was granted the benefit and the learned Single Judge ordered extension of those benefits to the writ petitioners, they were not entitled because the case of Abdul Rashid Rather was different. Even before us, nothing special or extraordinary fact or circumstance was shown to distinguish the case of Abdul Rashid Rather and of the present appellants. In our opinion, therefore, the learned Single Judge was wholly justified in allowing the writ petition and the Division Bench ought not to have interfered with the said decision.''
19. A close reading of the above judgment categorically shows that the issue raised in the present writ petitions is no longer res integra, since it has been repeatedly considered and decided by this Court in more than one judgment that 50% of the past service rendered in non-provincialised service, consolidated pay, honorarium, daily wage basis has to be counted along with the regularised service for the purpose of pension in respect of the employees who have retired in various departments viz., Education, Forest, Municipalities etc. Hence, this Court has no hesitation to allow all the writ petitions.
20. In the result, all the Writ Petitions are bound to be allowed. Accordingly, they are all allowed and the respondents are directed to count 50% of the petitioners services rendered on daily wage basis along with their regular service and to allot GPF Account Number for grant of pension to the petitioners under the Tamil Nadu Pension Rules 1978 (Old Pension Scheme). The said exercise shall be completed within a period of four weeks from the date of receipt of a copy of this Order. No costs. Consequently, connected Miscellaneous Petitions are closed.
06.06.2018 Index:Yes Internet:Yes Speaking /Non-speaking order Note : Issue order copy on 20.06.2018 tsi To
1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George,
2.The Commissioner, Erode Corporation, Erode.
3.The Director of Local Fund Audit, Kuralagam, Chennai-108.
T.RAJA, J.
tsi W.P.No.22741/2015 etc. batch 06.06.2018